Wendell W. Cummins v. Commissioner of Social Security
Filing
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ORDER granting 30 Motion for Attorney Fees signed by Magistrate Judge Jennifer L. Thurston on 6/8/2011. (Leon-Guerrero, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WENDELL W. CUMMINS,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
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Defendant.
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1:07-cv-00234-JLT
ORDER GRANTING COUNSEL’S MOTION
FOR ATTORNEY FEES PURSUANT TO 42
U.S.C. § 406(b)
(Doc. 30)
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Denis Bourgeois Haley, (“Counsel”) attorney for Plaintiff Wendell Cummins, seeks an
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award of attorney fees pursuant to 42 U.S.C. § 406(b). (Doc. 30). Defendant has not opposed
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the motion.1 For the following reasons, the motion for attorney fees is GRANTED.
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I. Factual and Procedural History
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Plaintiff and Counsel entered into a contingent fee agreement, which provided Plaintiff
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would pay twenty-five percent of any awarded past due benefits on February 9, 2007. (Doc. 30,
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Exh. 1).
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On February 8, 2007, Plaintiff filed a complaint for review of the administrative decision
denying him benefits. (Doc. 1). The Court concluded the decision was not supported by
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On May 2, 2011, the Court directed Defendant to file an opposition or notice of non-opposition to
Counsel’s motion within twenty-one days of service, or by May 23, 2011. (Doc. 32). However, Defendant failed to
comply. Therefore, Defendant has waived any objections to the motion.
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substantial evidence in the record and issued an order remanding the case pursuant to 42 U.S.C. §
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405(g) for further consideration on September 11, 2008. (Doc. 25). Following the entry of
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judgment in favor of Plaintiff (Doc. 26), the parties stipulated to an award of $3,450 in attorney
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fees pursuant to the Equal Access Justice Act (Doc. 28), which was awarded on February 26,
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2009 (Doc. 29).
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On January 14, 2011, Plaintiff received a notice of a “fully favorable decision” from an
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administrative law judge. (Doc. 30, Exh. 2). Plaintiff received a “Notice of Award,” which
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indicated he was entitled to retroactive benefits beginning September 2005. (Doc. 30, Exh. 3).
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II. Attorney Fees under § 406(b)
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An attorney may seek an award of attorney fees for representation of a Social Security
claimant who is awarded benefits:
Whenever a court renders a judgment favorable to a claimant under [42 USC § 401,
et seq] who was represented before the court by an attorney, the court may determine
and allow as part of its judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to which the claimant is
entitled by reason of such judgment. . . .
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42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section
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406(b) controls fees awarded for representation of Social Security claimants). A contingency fee
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agreement is unenforceable if it provides for fees exceeding twenty-five percent of past-due
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benefits. Id. at 807.
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III. Discussion and Analysis
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District courts “have been deferential to the terms of contingency fee contracts § 406(b)
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cases.” Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Ca. 2003). However, the Court
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must review contingent-fee arrangements “as an independent check, to assure that they yield
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reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should
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consider “the character of the representation and the results the representative achieved.” Id. at
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808. In addition, the Court should consider whether the attorney performed in a substandard
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manner or engaged in dilatory conduct or excessive delays, and whether the fees are “excessively
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large in relation to the benefits received.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir.
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2009) (en banc).
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In this case, Plaintiff willingly entered into the contingent fee agreement in which he
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agreed to pay twenty-five percent of any awarded retroactive benefits. Counsel accepted the risk
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of loss in the representation and spent 23.7 hours on the case. (Doc. 30 at 3). Counsel provided
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a record of the time spent on the matter, which establishes the amount of time spent on the case
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was reasonable. (Doc. 30, Exh. 4).
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As a result of Counsel’s work, she secured a remand of the matter to an administrative
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law judge, and, ultimately, the award of benefits to Plaintiff. For this, Counsel requests a fee of
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$9,000 under the fee contract. This is much less that the amount to which she would be entitled
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under the contract. Because Plaintiff expects to receive $59,038.50 in benefits, $14,759.63 would
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be awardable under the agreement. Id. Because $3,450.00 was paid under the EAJA, the net
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cost to Plaintiff is $5,550.00. Notably, Plaintiff and Defendant did not oppose the motion,
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thereby indicating their belief that the fees requested are reasonable.
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IV. Conclusion and Order
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The fees sought by Counsel are reasonable and not in excess of the twenty-five percent
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maximum permitted under 42 U.S.C. §406(b). Further, there is no indication Counsel performed
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in a substandard manner or engaged in dilatory conduct.
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Based upon the foregoing, IT IS HEREBY ORDERED:
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1.
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GRANTED;
2.
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Counsel’s motion for attorney fees pursuant to §406(b) in the amount of $9,000 is
The Commissioner SHALL certify the fee award, in the amount of $9,000, to be
paid directly to Counsel; and
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Counsel SHALL refund $3,450 to Plaintiff Wendell Cummins.
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IT IS SO ORDERED.
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Dated: June 8, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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